Michigan Supreme Court; Docket No. 119187; Published
Opinion by Justice Corrigan; 5-2 (Justices Kelly and Cavanagh dissenting)
Official Michigan Reporter Citation: 468 Mich. 241, Link to Opinion 
STATUTORY INDEXING:
Entitlement to Benefits for Out of State Accidents [3111]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this 5-2 decision by Justice Corrigan, the Supreme Court reversed the Court of Appeals [Item No. 2206] and denied no-fault benefits to plaintiff who sustained serious injury in an out-of-state accident, for the reason that plaintiff was not “an occupant” of a Michigan insured vehicle at the time of the injury, within the meaning of §3111 of the Act. Plaintiff in this case did not have Michigan no-fault coverage. He was injured in an out-of-state accident and claimed he was entitled to Michigan no-fault PIP benefits because he was “an occupant” of a Michigan insured vehicle that was involved in the accident. Plaintiff had been driving the Michigan insured vehicle in Ohio when it developed a flat tire. Plaintiff pulled over to the side of the road and began the process of changing the tire. He loosened the lugnuts on the wheel and began to walk toward the rear of the car, at which time an oncoming automobile struck plaintiff and threw him against the vehicle he had been driving. Plaintiff admitted that he had not been touching the Michigan vehicle at the time of the incident and was approximately six inches away from it when he was injured. Because plaintiff was not insured under a Michigan no-fault policy, his right to collect no-fault PIP benefits under §3111 depended on whether he was “an occupant of a vehicle involved in the accident whose owner or registrant was insured under a personal protection insurance policy.” The Supreme Court noted that the term “occupant” is not defined in the no-fault statute. The insurance policy covering the Michigan vehicle defined the phrase “occupying” as “in, upon, getting in, on, out, or off.” The Michigan Supreme Court concluded that plaintiff was neither an “occupant” nor “occupying” and therefore was not entitled to benefits under the statute or the policy. In so holding, the court reviewed its earlier decisions in Royal Globe v Frankenmuth Insurance Company, [Item No. 777] and Rohlman v Hawkeye Security Insurance Company (Rohlman I) [Item No. 1627] and Rohlman v Hawkeye Security Insurance Company (Rohlman II) [Item 1744]. In relying upon the analysis utilized in these cases, Justice Corrigan wrote:
“No-fault PIP benefits are not available to plaintiff under §3111. A person must be physically inside a vehicle to be an ‘occupant’ of it under the no-fault act. . . . Plaintiff was not physically inside the vehicle during the accident and thus was not an ‘occupant’ of it.
We need not reach the conclusion left open in Rohlman I, i.e., whether a policy may provide coverage broader than that required by the no-fault act. Plaintiff was not ‘occupying’ the vehicle under the policy definition of that term. He was outside the vehicle, approximately six inches away from it. He was not in the vehicle, nor was he getting in, on, out, or off the vehicle when he was injured.
Plaintiff suggests that he was ‘upon’ the car because he was pinned against it after being struck. Physical contact by itself does not, however, establish that a person is ‘upon’ a vehicle such that the person is ‘occupying’ the vehicle. The relevant dictionary definitions discussed above clarify that one must be on or up and on a vehicle in order to be ‘upon’ it. We reject the dicta in Rohlman II that suggests physical contact alone may be sufficient to show that the person was ‘upon’ the vehicle so as to be ‘occupying’ the vehicle.”
The court also held that its pre-no-fault opinion in Nickerson v Citizens Mutual Insurance Company, 393 Mich 324 (1975) was overruled to the extent that it was inconsistent with the analysis in the case at bar. In that regard, Justice Corrigan wrote, “The definition of ‘occupying’ in the Nickerson policy is essentially identical to the definition in the policy before us. Because Nickerson did not follow that definition, we overrule that decision to the extent that it is inconsistent with our analysis here. . . .”
Justices Kelly and Cavanagh dissented on the basis that a fact issue was presented that required jury determination.
